New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2001-016-200, Claim No. 101323, Motion No. M-63922


Pro se claim was dismissed for lack of service.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
No appearance
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, AAG
Third-party defendant's attorney:

Signature date:
October 29, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Joseph Martinez on the grounds that the state was never served with the claim. The underlying claim is for loss of personal property, assault by employees of defendant, being placed on restrained diets without being seen by a nurse and through "illegal" disciplinary hearings, and for inadequate medical treatment. The claim was filed on October 29, 1999. Claimant appears to assert that the claim accrued on August 18, 1999, although no dates are provided as to any of the specific allegations in the claim. Defendant has submitted the affidavit of a senior clerk in the office of the Attorney General who states that she has made a thorough search of the records and that this claim was never served on the Attorney General. See the July 13, 2001 affirmation of Carol A. McKay. Martinez does not dispute that he failed to serve the Attorney General, having submitted no papers on this motion. No answer was filed in this case.

Section 11 of the Court of Claims Act requires service of a claim upon the Attorney General, either personally or by certified mail, return receipt requested. "It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). In short, this Court lacks jurisdiction over Martinez' claim by virtue of his failure to serve the claim on the Attorney General.

Accordingly, having reviewed the parties' submissions, [1] IT IS ORDERED that motion no. M-63922 be granted and the claim of Joseph Martinez be dismissed. Claimant may wish to consider making a motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act.[2]

October 29, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Along with the claim, the Court reviewed defendant's notice of motion with affirmation in support, the affidavit of Carol A. McKay and Exhibit A. Claimant submitted no papers on this motion.
  2. [2]Section 10.6 of the Act provides that permission to file a late claim may be granted upon consideration of six factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." Section 10.6 also provides that permission to file a late claim may be granted only if the relevant statute(s) of limitation have not yet run.